Texas Attorney General Media Advisory

AUSTIN - Texas Attorney General John Cornyn offers the following information on Rodolfo Baiza Hernandez, who is scheduled to be executed after 6 p.m. on Tuesday, April 30, 2002. On Sept. 26, 1985 Rodolfo Baiza Hernandez was sentenced to death for the capital murder of Victor Manuel Serrano Cervan, in Comal County, Texas, on or about March 7, 1985. A summary of the evidence presented at trial follows:

FACTS OF THE CRIME

In early March, 1985, five young men in Mexico boarded a box car which would transport them into the United States. When they arrived in San Antonio, they were approached by Rodolfo Baiza Hernandez, who asked them what they were doing. In the course of the conversation, Hernandez learned that the five men were trying to reach Denton, Texas, where they hoped to find work on a farm or ranch. Hernandez then took the five men to his house in an attempt to find them transportation to Denton.

While the men waited outside the house, Hernandez awakened his brother-in-law Jesse Garibay and arranged for Garibay to transport the men in the family car for a fee. Garibay drove, Hernandez sat in the passenger's seat, his brother Richard sat between them in the front seat, and the five men sat in the back. Richard was dropped off at his place of employment and the seven men continued north into Comal County.

After reaching a secluded part of the county, Garibay and Hernandez stopped the car and pretended that they were having car trouble. One of them opened the trunk and took out several firearms. Moments later, Garibay and Hernandez ordered the men out of the car at gunpoint. One man tried to run away but Hernandez shot him in the back. Hernandez then ordered the five men to lie face up on the ground and to hand over their money. He went from one to another, taking what ever they had and shooting each one in the neck. After taking what they could and leaving the five men bleeding on the ground, Hernandez and Garibay sped away and returned home to San Antonio. One of the five victims, Victor Manuel Serrano Cervan, died; the other four survived. Two of the survivors testified against Hernandez at trial.

After Hernandez and Garibay returned home, Susan Garibay observed her husband, Jesse Garibay, covering himself with blankets and acting scared. Her brother, Rodolfo Hernandez, sat watching television while slinging a gun on his little finger. When a news report came on about the shootings in Comal County, Hernandez told his sister that he was "a gunslinger" and President Reagan told him that "Texas was overpopulated and had instructed him to get rid of some of San Antonio's illegal aliens." Hernandez was laughing and joking so his sister did not take the statements seriously.

Several days later, Hernandez and Garibay were staying with a neighbor, Anthony Urbano. Again, a news report appeared on television about the multiple shootings near New Braunfels. Hernandez, while swinging two little guns on his fingers, bragged to Urbano that he had shot the men and killed one of them.

Soon after these incidents, Hernandez took two guns to a friend and asked the friend to sell them for him. The police later recovered the guns. Firearms experts testified that the two pistols were the ones that had fired the bullets recovered from the five victims.

PROCEDURAL HISTORY

May 15, 1985 - Hernandez indicted for the capital murder of Victor Manuel Serrano Cervan during robbery.

September 25, 1985 - A jury found Hernandez guilty of capital murder.

September 26, 1985 - Following a separate punishment hearing, Hernandez was sentenced to death.

October 24, 1990 - Texas Court of Criminal Appeals affirms the conviction and sentence.

December 5, 1990 - The Texas Court of Criminal Appeals denied rehearing.

June 3, 1991 - The United States Supreme Court denied Hernandez' petition for writ of certiorari.

August 15, 1991 - Hernandez then filed a petition for a state writ of habeas corpus.

October 7, 1993 - Special master submits proposed findings of fact and conclusions of law.

October 27, 1993 - The trial court adopts findings and conclusions denying all relief.

June 28, 1994 - In an unpublished order, the Texas Court of Criminal Appeals denied relief.

September 26, 1994 - Hernandez filed a second petition for writ to the Court of Criminal Appeals.

January 9, 1995 - The Supreme Court denied the petition; execution set for February 22, 1996.

February 7, 1996 - Stay granted and Hernandez ordered to file his federal habeas petition by June 30, 1996.

April 11, 1997 - After nearly one year of extensions, Hernandez filed his federal habeas petition.

August 12, 1998 - The district court denied habeas corpus relief.

April 11, 2001 - The Fifth Circuit affirmed the district court's denial of habeas relief.

November 26, 2001 - Hernandez' petition for writ of certiorari was denied.

Approximately three days before his March 21, 2002, scheduled execution, Hernandez filed a subsequent state habeas application which was denied on March 20, 2002. On March 21, 2002, the day of Hernandez's scheduled execution, the Texas governor granted Hernandez's request for a 30 day reprieve based on information he allegedly possessed regarding other crimes committed in Bexar County, Texas. Hernandez's execution was rescheduled for April 30, 2002. On April 25, 2002, Hernandez filed another petition for writ of certiorari review, this time, from the state court's March 20, 2002, dismissal of his subsequent state habeas application. On April 30, 2002, the United States Supreme Court denied Hernandez' petition for writ of certiorari and his motion for a stay of execution.

CRIMINAL HISTORY

At the punishment phase of trial, the State called Bob Steele and Al Cuellar, both Texas Rangers, to testify that Hernandez was not a peaceful and law abiding citizen. The State introduced evidence reflecting that Hernandez was convicted on two counts of aggravated robbery in 1974. Mary Van Sickle, Hernandez' parole officer from 1982 to 1983 testified that the court revoked Hernandez' parole in 1983 because he illegally possessed two handguns, a .25-caliber handgun and a .38-caliber handgun with ammunition. After the revocation, Hernandez was returned to the Texas Department of Corrections. Van Sickle did not recall when Hernandez was again released from prison.

ProDeathPenalty.com

Hernandez had previously been scheduled for execution on March 21, 2002 but received a 30-day reprieve. Gov. Rick Perry, in an unexpected decision, spared the former auto mechanic at the request of San Antonio police who met with Hernandez this week on death row. The police believed Hernandez had information about unsolved murders. Hernandez, 52, got word of the reprieve minutes before he was to be taken to the death house in a wheelchair. Hernandez was found guilty of robbing and shooting five undocumented Mexican immigrants in March 1985 in a remote area just north of San Antonio. One of the men died. "The police department in San Antonio apparently was able to corroborate two of the other murders that he said he participated in and they would like the time to talk with him to try to solve some more of these cases,'' Perry spokeswoman Kathy Walt said.

UPDATE: In early March, 1985, five young men in Mexico boarded a box car which would transport them into the United States. When they arrived in San Antonio, they were approached by Rodolfo Baiza Hernandez, who asked them what they were doing. In the course of the conversation, Hernandez learned that the five men were trying to reach Denton, Texas, where they hoped to find work on a farm or ranch. Hernandez then took the five men to his house in an attempt to find them transportation to Denton. While the men waited outside the house, Hernandez awakened his brother-in-law Jesse Garibay and arranged for Garibay to transport the men in the family car for a fee. Garibay drove, Hernandez sat in the passenger's seat, his brother Richard sat between them in the front seat, and the five men sat in the back. Richard was dropped off at his place of employment and the seven men continued north into Comal County. After reaching a secluded part of the county, Garibay and Hernandez stopped the car and pretended that they were having car trouble. One of them opened the trunk and took out several firearms. Moments later, Garibay and Hernandez ordered the men out of the car at gunpoint. One man tried to run away but Hernandez shot him in the back. Hernandez then ordered the five men to lie face up on the ground and to hand over their money. He went from one to another, taking what ever they had and shooting each one in the neck. After taking what they could and leaving the five men bleeding on the ground, Hernandez and Garibay sped away and returned home to San Antonio. One of the five victims, Victor Manuel Serrano Cervan, died; the other four survived. Two of the survivors testified against Hernandez at trial. After Hernandez and Garibay returned home, Garibay's wife observed her husband covering himself with blankets and acting scared. Her brother, Rodolfo Hernandez, sat watching television while slinging a gun on his little finger. When a news report came on about the shootings in Comal County, Hernandez told his sister that he was "a gunslinger" and President Reagan told him that "Texas was overpopulated and had instructed him to get rid of some of San Antonio's illegal aliens." Hernandez was laughing and joking so his sister did not take the statements seriously. Several days later, Hernandez and Garibay were staying with a neighbor. Again, a news report appeared on television about the multiple shootings near New Braunfels. Hernandez, while swinging two little guns on his fingers, bragged to the neighbor that he had shot the men and killed one of them. Soon after these incidents, Hernandez took two guns to a friend and asked the friend to sell them for him. The police later recovered the guns. Firearms experts testified that the two pistols were the ones that had fired the bullets recovered from the five victims.

Texas Execution Information Center by David Carson.

Rodolfo Baiza Hernandez, 52, was executed by lethal injection on 21 March in Huntsville, Texas for murder and robbery.

In March 1985, five men came illegally into the United States from Mexico in a railroad box car. When they arrived in San Antonio, Texas, they met Rodolfo Hernandez, then 35, who agreed to transport them to Denton for $150 each. Hernandez took them to his house, where he picked up his brother, Richard, and his brother-in-law, Jesse Garibay, 19. The eight men drove a short distance, dropped Richard Hernandez off at his place of employment, and continued north.

When they reached a secluded area near New Braunfels, Garibay and Hernandez stopped the car, pretending they were having car trouble. They then opened the trunk and took out several firearms. Hernandez ordered the men out of the car and told them to lie on the ground, face down. When one of the victims tried to run away, Hernandez shot him in the back. Hernandez and Garibay shot each man multiple times with .22-caliber and .25-caliber weapons, took their valuables, and fled. Victor Cervan, 20, suffered four wounds and was pronounced dead on arrival at a local hospital. The other four victims survived. Hernandez was arrested six days later near Poteet, another town near San Antonio. Garibay was arrested twelve days after the murders in Longview, which is hundreds of miles away, near the Louisiana state line.

The four surviving victims identified Hernandez and Garibay as the men who shot and robbed them. Two of them testified against Hernandez at his trial. Jesse Garibay's wife, Susan, testified that on the day of the shootings, her husband came home appearing scared. Her brother, Rodolfo, watched television while handling a gun. When a news report came on about the shootings, Hernandez told Susan that President Reagan had told him to "get rid of some illegal aliens," because Texas was overpopulated. A neighbor, Anthony Urbano, testified that while Hernandez and Garibay were at his house a few days later, a news report about the shootings came on television and Hernandez bragged to him about shooting the men and killing one of them. Urbano later pawned two guns at Hernandez' request. These guns were identified as the ones used in the shootings.

Rodolfo Hernandez had a previous conviction for aggravated robbery. He began serving a 15-year sentence (or 12 years, according to some records) in 1975, then was paroled in 1979. In 1983, he was returned to prison for illegally possessing handguns and thereby violating parole. He was discharged again 13 months later. The murder of Victor Cervan took place about 8 months after his second release from prison. Hernandez also had an earlier conviction for unauthorized use of a vehicle (i.e. joy riding) in 1971, for which he received 2 years' probation.

Hernandez was convicted of capital murder in September 1985 and sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence in October 1990. He was originally scheduled to be executed in February 1996, but received a stay so he could file a federal appeal. That appeal was denied in August 1998, as were all of his later appeals. Jesse Garibay Jr. was convicted of theft and sentenced to four years in prison. He has since received four more convictions for burglary and theft.

Hernandez contended that he was innocent of the killings, saying that the charges against him "were made up to make me look bad."

While on death row, Hernandez had to have his left leg amputated 4 inches below the knee in July 2001 as a result of diabetes complications. He requested an artificial leg, but a prison spokesman said that Hernandez could not have a prosthetic until an infection cleared up. As his next scheduled execution date of 21 March 2002 drew near, Hernandez repeated his request so that he could "walk like a man" to his execution. A prison spokesman said that a prosthetic leg would cost taxpayers $8,000 and was not considered a medical necessity, especially just days before Hernandez was to die.

On 19 March, two days before his scheduled execution date, Hernandez had confession with a priest. Afterward, he felt that he not cleared his conscience enough, and that further confession was necessary. This time, however, he wanted to confess not to a priest, but to police, about some other murders that he had committed. That afternoon, detectives in the San Antonio police department received a phone call requesting them to come to death row in Livingston. Homicide Detectives Robert Moffitt and Barney Whitson made the 200-mile drive and spoke with Hernandez on Wednesday morning. After gathering little that they could use in what they considered a wasted trip, they left and began driving back to San Antonio at about noon. On the way, prison officials called them and said that Hernandez wanted them to come back, and that he would be more cooperative.

Hernandez spent several hours Wednesday evening giving Moffitt and Whitson details of at least 12 other murders that he either committed or witnessed. Most of these murders occurred from 1980 to 1985 and had gone unsolved. Moffitt and Whitson called their unit with some of the information and headed home. All that night and the next morning, San Antonio police worked, matching Hernandez's stories with cases in their homicide archives. Around noon, they started to find that Hernandez knew details about these cases that only the killer or an eyewitness would know. At 5:15 p.m., 45 minutes before his execution was to begin, they faxed Governor Rick Perry, asking him to grant Hernandez an emergency stay of execution.

That afternoon, Hernandez was too nervous to eat any of his last meal. From the holding cell in the Walls Unit in Huntsville, he knew that at 6:00 p.m., some guards would come, strap him to a gurney, and wheel him into the execution chamber. But instead, one guard came two minutes ahead of schedule and told him that Governor Perry had granted him a stay. Hernandez would not be executed that night.

In an interview the next week, Hernandez said that, before his arrest, he was a well-paid contract killer. His employers -- "mobsters from California, New York, Chicago ... big mobsters" -- provided the guns, photographs of the targets, and paid him between $20,000 and $100,000 per killing. Hernandez said he did not know his victims and was under strict orders not to touch them or take anything from them. He said his orders were to "just make sure he's dead and go back about your business."

Hernandez said he was promised immunity from prosecution on the old cases by San Antonio authorities. He denied that he made the confessions simply to earn a stay and prevent his execution. He did admit, however, that he would try to parlay his cooperation with police into a commutation of his sentence. He also denied again that he killed Victor Cervan. Prosecutors almost immediately requested a new execution date for Hernandez, and a judge set it for 30 April, only ten days after Gov. Perry's stay expired. This time, no one intervened.

At his execution, Hernandez thanked his spiritual advisor and friends by name. He then said, "Everybody will be all right, because y'all are going where I am going. Remember what I said, I want to see you all where I'm going. I want to give thanks. God, come and do Your will. I'm ready, Warden." As the lethal injection flowed, he repeated "Here I am, God. I'm coming to do your will," three times, his voice weakening each time. He was pronounced dead at 6:23 p.m.

Reuters News

"Texas Executes One-Legged Inmate for Murder." (April 30, 2002)

HUNTSVILLE, Texas (Reuters) - Texas authorities on Tuesday executed a one-legged murderer after denying him a request to be fitted with a prosthetic device so he could walk to his death ``like a man''. Rodolfo Hernandez, 52, who received a last-minute temporary reprieve from execution last month so he could give police information about unsolved murders, was pushed into the death row prison in a wheelchair. Hernandez, whose diabetes led to the amputation of his left leg below the knee last summer, accused the state of refusing to fit him with an artificial leg because of the expense -- $8,000. But prison officials said he could not use a prosthesis because of a recurring infection.

In a final statement as he was strapped to a gurney in the Texas death chamber to receive a lethal injection, Hernandez told several friends witnessing his death: ``Everybody will be all right because y'all are going where I am going. Remember what I said -- I want to see you all where I'm going. God, come and do your will. I'm ready, warden.''

Hernandez originally was set to die March 21 for the 1985 murder of a Mexican immigrant, but Texas Gov. Rick Perry gave him a stay just minutes before he was to get a lethal injection. Police in San Antonio, Texas requested the reprieve because Hernandez told them he had information about several unsolved murders that he had witnessed or participated in. San Antonio Assistant Police Chief Manuel Longoria said on Tuesday that Hernandez had been linked to at least three killings, apart from the one for which he was convicted, dating back to 1980. ``He made some statements to us, and identified some items at the crime scenes, that even the police were not aware of,'' he said. After he told police about the crimes, a judge gave him a new execution date.

Hernandez was condemned to death for killing illegal immigrant Victor Manuel Serrano Cervan, 20, during a robbery in New Braunfels, Texas. Four other Mexicans traveling with Serrano were wounded in the attack.

Hernandez was the 10th person put to death this year in Texas, which leads the nation in capital punishment, and the 266th since the state resumed executions in 1982, six years after the U.S. Supreme Court lifted a national death penalty ban. Texas has eight executions scheduled in May, including one on Wednesday.

For his final meal, Hernandez requested two cheeseburgers, French fries, three fajita tacos, guacamole salad and two fried chicken breasts.

Dallas Morning News

"Hernandez Executed For Murder of Undocumented Worker," by Ed Timms & David McLemore.

05/01/2002 - Texas death-row inmate Rodolfo Hernandez recently achieved notoriety when he asked for a prosthetic leg so he could walk to his execution – and when he got a reprieve, minutes before he was scheduled to die, so he could talk to investigators about a dozen unsolved murders.

But Tuesday evening, Mr. Hernandez's time ran out. He was executed shortly after 6 p.m. for the 1985 death of Victor Cervan, 20, of San Luis Potosí, Mexico, one of five undocumented workers from Mexico shot during a robbery in Comal County, north of San Antonio. The others survived.

Mr. Hernandez was pronounced dead at 6:23 p.m. Tuesday, 11 minutes after lethal doses of drugs began flowing into his arms.

San Antonio police officials had requested that Mr. Hernandez's scheduled March execution be delayed so that they could investigate claims that he had knowledge of a dozen unsolved slayings and even participated in some of them. Tuesday, they said that the 40-day stay was worth it. "It was very important," police spokeswoman Sandy Gutierrez said. "For police, any time that we can close homicide cold cases, it's a success. More importantly, the families have been able to gain some closure on the death of their loved ones." Mr. Hernandez was able to clear three decades-old slayings, police said. Police were confident that Mr. Hernandez was the shooter in the slayings, which began as robberies, Ms. Gutierrez said.

One case involved the shooting death of Robert Comperin, a local businessman, in March 1983. Another case involved Anna Solis, a businesswoman from Mexico who was shot in San Antonio on Aug. 12, 1982. A third killing linked to Mr. Hernandez took place in 1982. Police withheld details of that killing at the family's request. "The families have all been in touch with police and have expressed their gratitude and finally having answers to who killed their relatives," Ms. Gutierrez said. "There is no indication of any involvement with the Mexican Mafia or any other prison gang," Ms. Gutierrez said. "The record indicates he robbed these people, then killed them because he was afraid they would identify him."

San Antonio police formed a six-person task force to look into Mr. Hernandez's 11th-hour claims that he killed or witnessed the murders of 12 people from 1982 to 1985. After at least three interviews with him, police said, he never showed remorse. They are continuing to look into other cases. "Whether he was attempting to clear his conscience or simply buy time, we don't know," Ms. Gutierrez said. "No one knows his motives for confessing."

One day before his scheduled execution in March, Mr. Hernandez had asked to speak to San Antonio police, and San Antonio homicide detectives interviewed him. Based on the information they obtained, San Antonio officials asked Gov. Rick Perry to delay the execution. Mr. Perry issued the reprieve, his second as governor. The first was granted to Jeffrey Tucker, who was to die Sept. 11, the day of the terrorist attacks on the World Trade Center and the Pentagon. Mr. Tucker was executed Nov. 14. Mr. Hernandez learned of his reprieve while in a holding cell adjacent to the death chamber at 5:58 p.m., two minutes before his scheduled execution.

Mr. Hernandez's lower left leg was amputated last year because of complications from diabetes. Before his first execution date, he had sought an artificial limb. Prison officials said an infection had prevented the stump from healing, which was why he was not fitted with a prosthetic leg. On Tuesday, Mr. Hernandez was rolled to the death chamber in a wheelchair.

Texas Department of Criminal Justice spokeswoman Michelle Lyons said that a spiritual adviser witnessed his execution, but that no members of his family or relatives of his victim were present. "I want to see you all in the same place I'm going," he said shortly before the execution.

As he looked at the ceiling of the death chamber, Mr. Hernandez said: "Here I am, God, I come to do your will. Here I am, God, come and do your will." As he was being taken to his death, Mr. Hernandez asked the prison's warden why he was strapped down. "You're supposed to strap down the people who want to escape," Mr. Hernandez said, indicating that he was ready for his execution.

The Herald of Everett, Washington

"Killer Wants Prosthesis Before Execution." (AP)

LIVINGSTON, Texas -- Convicted killer Rodolfo Hernandez wants two legs by the time he makes that final, 50-foot journey to the death chamber next month. But he says the prison system is stalling on his request for an artificial limb.

Hernandez, whose left leg was amputated 4 inches below the knee last July because of complications from diabetes, says the state does not want to spend the money because he is set to be executed. Prison officials, though, say a persistent, antibiotic-resistant staph infection is preventing Hernandez from being fitted with a prosthesis. They say the cost is not an issue, and neither is his impending execution. "Just because he has an execution date doesn't mean we would deny him medical treatment," says Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice. "It all depends on when his infection clears."

Hernandez, 52, is set for lethal injection March 21 for his part in robbing and shooting five illegal Mexican immigrants who had crossed into Texas in a boxcar in 1985. One of the five was killed. Hernandez contends he is innocent.

Of the 454 men and women on death row in Texas, Hernandez is the only amputee. Hernandez will not say whether he wants to walk the final 50 feet from a holding cell to his death. But he says, "I came in here with two legs. I'd like to go out of here with two."

Washington Times

"Convict Gets Last-Minute Reprieve."

HUNTSVILLE, Texas, March 21 (UPI) -- Convicted killer Rodolfo Hernandez received a 30-day reprieve from the governor Thursday, only minutes before his scheduled execution for the murder of an undocumented immigrant in 1985. Hernandez was informed only two minutes before the execution procedure was to begin that Gov. Rick Perry had granted the stay at the request of San Antonio police, a prison official said. The police believe the 52-year-old San Antonio man has information about some unsolved slayings in the city.

"I sure feel like eating now," Hernandez said, before finishing his last meal of two cheeseburgers and French fries and heading back to death row in Livingston, Texas. Hernandez, who lost his left leg to complications of diabetes last July, said he had faith in God that things would turn out right. "I feel relieved," he said. "Now I can breathe."

Hernandez, who uses a walker and a wheelchair, requested an artifical limb so he could walk to his execution but his request was denied. Prison officials said doctors could not fit him with the prostheses because of a recurring infection in the wound where his leg was amputed below the knee.

Hernanez was scheduled to receive a lethal injection for the murder of Victor Cervan on March 7, 1985 in a secluded area north of San Antonio. Cervan and four other illegal immigrants were ordered out of a car by Hernandez and an associate and told to lie face up on the ground. Hernandez then shot each one in the neck as he robbed them, leaving them bleeding on the ground. All of the men survived, except Cervan, and two of them testified against Hernandez at his trial.

Rick Halperin

RODOLFO HERNANDEZ - Scheduled Execution Date and Time: 3/21/02 Texas
Write or email Gov. Rick Perry and urge him to Stop this Execution !

Rodolfo Hernandez is scheduled to be executed on March 21 in the state of Texas for the 1985 murder of Victor Cervan. This case is just another in the long list of those Texas has seen fit to execute in spite of well-documented mental illness. Hernandez's case revolves around significant Sixth and Eighth Amendment irregularities in his case. In a strong dissent, which is rare for a habeas appeal in Texas, U.S. Circuit Judge Dennis asserted that, "we should conclude that testimony in violation of Hernandez's Sixth Amendment right had a substantial and injurious influence on the jury's determination of future dangerousness and was not a harmless error."

The testimony indicated is that of Dr. John Sparks, who ignored credible accounts of Hernandez's schizophrenia in his diagnosis. Sparks labeled Hernandez as sociopathic, which is crucial in a determination of future dangerousness in Texas. Furthermore, Sparks' examination of future dangerousness occurred without Hernandez's legal counsel being notified and this examination was later used against Hernandez in the penalty phase of his trial. Hernandez was never notified that his testimony in the examination would be used against him in seeking the death penalty. This is all in violation of the well-established Sixth Amendment right to have counsel present.

Dr. Sparks is indicative of another Texas trademark in capital cases. Much like Dr. Charles Grigson, known as "Dr. Death" for testifying in so many capital cases, Dr. Sparks has demonstrated a willingness to overlook the available evidence in pursuit of a preordained diagnosis. In the opinion denying Hernandez federal relief, it was noted that "Dr. Sparks did not obtain or review Hernandez's U.S. Army or TDC psychiatric or medical records." While he was clearly aware of these records, having been notified of their existence by Hernandez, he nevertheless chose to make a diagnosis of Hernandez as sociopathic. To determine future dangerousness all a Texas prosecutor apparently needs to do is find the right psychiatrist. What has transpired here is the rubber-stamping of Hernandez's habeas appeal to federal courts, and the acceptance as fact all findings of the Texas Court of Criminal Appeals. Judge Dennis notes, again, "[the majority opinion] is one that is contrary to, and an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Please call and write the state of Texas to protest the continued erosion of our guaranteed constitutional rights.

Hernandez v. State, 805 S.W.2d 409 (Tex.Cr.App. 1990) (Direct Appeal).

This is an appeal from a conviction for capital murder, specifically murder in the course of committing or attempting to commit robbery. See V.T.C.A., Penal Code § 19.03(a)(2) Appellant was sentenced to death. He brings five points of error on appeal, complaining that the trial court erred in admitting penalty-stage testimony from a psychiatrist concerning the results of appellant's pre-trial competency exam; that the trial court should have instructed the jury to disregard an alleged reference to extraneous offenses; that another reference to an extraneous offense during the penalty phase called for a mistrial; that the trial court should have stated its reasons on the record for allegedly allowing the jury to view appellant in chains; and finally that a mistrial should have been granted when several jurors were in position to see appellant in chains on several occasions outside the courtroom. After due consideration of appellant's claims, we will affirm the judgment of the trial court.

Since the sufficiency of the evidence is not challenged, only a brief recitation of the events surrounding the offense will be necessary. One day in early March, 1985, five young men in Mexico boarded a box car which would transport them into the United States. When they disembarked in San Antonio, they were approached by appellant, who asked them what they were doing. In the course of the conversation, appellant learned that the five men hoped to reach Denton, Texas, where they had an expectation of finding work, apparently at some kind of farm or ranch. Appellant then took the five illegal aliens to his house in an attempt to find them transportation to Denton.

While the men waited outside the house, appellant awakened his brother-in-law Jesse Garibay and arranged for Garibay to transport the illegal aliens in the family car for a fee. Garibay drove, appellant sat in the passengers' seat, appellant's brother Richard sat between them in the front seat, and the five illegal aliens sat in the back. Richard was soon dropped off at his place of employment and the other seven men continued their journey north into Comal County.

There was some confusion at trial concerning the exact nature of the relationship between appellant and Garibay. Garibay's wife Susan, who is appellant's sister, testified that she and Garibay had been ceremonially married less than a month before appellant's trial. Her testimony varied as to whether a common law marriage had previously existed.

After reaching a secluded part of the county away from any main highway, Garibay and appellant stopped the car and pretended that they were having car trouble. One of them opened the car trunk and took out several firearms. They asked their passengers if any of them wanted to get out and urinate; when none of them did, Garibay and appellant ordered the men out of the car at gunpoint. One man tried to run away, but appellant shot him in the back and he fell down. Appellant then ordered all five men to lie face up on the ground and to hand over all their money. He began going from one to another, taking what ever they had and shooting each one in the neck. After taking what they could and leaving all five men bleeding on the ground, appellant and Garibay sped away and returned home to San Antonio. Surprisingly, only one of the five victims, Victor Manuel Serrano Cervan, died; the other four survived and two of these testified against appellant at trial.

After appellant and Garibay returned home, Susan Garibay observed her husband covering himself with blankets and acting scared; appellant sat watching television while slinging a gun on his little finger. When a news flash came on about the shootings in Comal County, appellant told his sister that he was "a gunslinger" and that President Reagan had told him that Texas was overpopulated and had instructed him to get rid of some of San Antonio's illegal aliens. Appellant was laughing and joking while saying these things, so his sister did not take the statements seriously.

Several days later, appellant and Garibay were staying with a neighbor, Anthony Urbano. Once again, a news report appeared on television about the multiple shootings near New Braunfels. Appellant, while swinging two little guns on his fingers, then bragged to Urbano that he had shot the illegal aliens and killed one of them. Soon after these incidents, appellant took two guns to a friend and asked the friend to sell them for him. The police later recovered these guns, and firearms experts testified that these two pistols were the ones that had fired the bullets recovered from the five victims.